Solicitors:
N/A (Applicant)
Pikes and Verekers Lawyers (Respondent
File Number(s): 10398 of 2014
[2]
Introduction
SENIOR COMMISSIONER: On 6 May 2015, Mr Ross, in his role as agent for Ms Chami, filed a Notice of Motion seeking changes to a number of matters that had been required to be undertaken by Ms Chami as a consequence of determinations set out in my preliminary determination in this matter (Chami v Lane Cove Council [2015] NSWLEC 1003 - hereafter referred to as Chami v Lane Cove).
On the return date set for that Notice of Motion, 15 May, I advised Mr Ross, consistent with the approach of treating him as Ms Chami's agent as a self-represented litigant (see, for example, [31] and [88] of Chami v Lane Cove) that she would need to make an application for leave to reopen the proceedings.
This procedural advice is consistent with the approach of courts to self-represented litigants as recently summarised by Gleeson JA in the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 (at 91 - 95).
Although, at an earlier mention on 15 March, Mr Griffiths, solicitor for Lane Cove Council (the Council) had suggested that I could and should require Ms Chami to be represented by a lawyer, I then indicated to Mr Griffiths that I considered that such a suggestion, if pursued by me, would be entirely improper. I did, however, indicate to Mr Ross on that occasion that it might be prudent for Ms Chami to consider seeking legal representation if she wished to pursue an application to reopen the proceedings.
The matters that were discussed in Ms Chami's affidavit sworn on 5 May 2015 (read in the further Notice of Motion proceedings that are the subject of this judgement) were confined to matters relating to the balcony area at the western end of the uppermost level of her dwelling and to the undercroft level at the rear of the first habitable level of the dwelling (proposed amendments to Schedule 1 of Chami v Lane Cove as set out in the Notice of Motion filed on 6 May).
The directions that I gave on that occasion to permit the bringing of any further Notice of Motion which did seek leave to reopen were in the following terms:
1. The applicant is to file and serve any Notice of Motion for leave to reopen by 4:30 PM on Friday 22 May;
2. If direction (1) is complied with, any such Notice of Motion is set down as returnable in court before Senior Commissioner Moore at 3 PM on 27 May;
3. If direction (1) is complied with, the respondent is to advise the applicant by 5 PM on Monday 25 May if the deponent of any affidavit in support of the Notice of Motion to reopen is required for cross-examination; and
4. Notice pursuant to direction (3) is to be provided by email to Mr Ross's email address as noted on the cover sheet of the applicant's affidavit dated 5 May 2015.
On 21 May, a further Notice of Motion was filed together with a further affidavit from Ms Chami dated 20 May. That Notice of Motion was set down for hearing before me on 27 May. The relief sought in the Notice of Motion was in the following terms:
1. Leave to reopen the proceedings is granted.
2. Order staying order 1 in Item 1-3 in Schedule 1 works contained in Chami vs Lane Cove Council [2015] NSWLEC 1003 dated 23rd Jan 2015
3. Schedule 1 works contained in Chami vs Lane Cove Council [2015] NSWLEC 1003 dated 23rd Jan 2015 be amended as follows:
Item 1- Undercroft south side openings
Proposed south side door to undercroft area shall be glass sliding 2400W x 2300H instead of 820W x 2040H solid door. High level opening to remain to provide cross ventilation or suitable window in opening to be provided.Item 2- 2nd floor garden box
Garden box to remain as configured permitting balcony width to be 3 m as per DCP, without the placement of soil. Potted plants to be provided as required.
Item 3: Lift openings on each level to be provided with stainless steel sliding doors.
Any further orders that the court sees fit.
At the commencement of the hearing on 27 May, Mr Ross moved on this motion and proposed to read both of Ms Chami's affidavits.
Mr Griffiths indicated that, with respect to the 20 May affidavit, he objected to a variety of elements contained in it. His objections were on various grounds that are, in my assessment, unnecessary to canvas given the overall conclusion that I have reached concerning the three elements in the application to reopen. Importantly, discussed at greatest length during the proceedings, were matters pressed by Ms Chami as to the safety or otherwise of undertaking the proposed works to the balcony at the western end of the uppermost level of her dwelling. I will return to this matter further.
I also observe that there was a deal of inappropriate and intemperate language used by Mr Ross (as was the case during the earlier, lengthy phase of the proceedings) and I have, for this phase as with the last phase, had no regard to the context or content of such remarks. To some extent, they may be explicable by the close involvement that Mr Ross has had with the wide range of proceedings that have taken place in the past concerning this dwelling or they may arise from the fact that, although leave has been granted for Mr Ross to act as Ms Chami's agent in the proceedings, he is not legally qualified. I consider it appropriate, during this phase of the proceedings, to make appropriate allowance concerning the use of language by him (as I did during the 2014 hearings).
I should also observe, in this broad context, that, in his general submissions toward the end of the proceedings on this motion, Mr Griffiths suggested, without notice to me (and I assume, from Mr Ross's reaction, without notice to Mr Ross) that I should revoke Mr Ross's leave to act as Ms Chami's agent. During the hearing, I emphatically rejected that proposal and I here confirm that rejection.
Should Mr Griffiths be instructed to seek revocation of Mr Ross's leave to act as Ms Chami's agent, such an outcome should be sought by Notice of Motion supported by what is said to be the proper evidentiary basis for such an outcome (as I indicated, during the course of these proceedings, would be the appropriate course for the Council to pursue if it wished to do so).
It was clear during the 2014 proceedings (and reinforced by some of the language used by Mr Ross during the course of the hearing of this application to reopen) that there is a deal of animus inherent in the attitude of Mr Ross (and by reasonable inference, by Ms Chami) to the Council. Whatever the basis for that, real or imagined, is entirely irrelevant in my deliberations on this application (as it was also irrelevant to my consideration of matters arising from the 2014 hearings).
Before I turn to the specific matters, I should observe that the general tests of whether leave should be given to reopen, as discussed by the High Court (Autodesk Inc and Another v Dyason and Others [No 2] [1993] HCA 6; (1993) 176 CLR 300), are generally applicable to applications to seek to reopen matters when orders have been made in that would otherwise dispose of some or all issues in dispute between the parties. The position in these proceedings is, to some limited extent, different from that position. This arises because, in my January judgement (Chami v Lane Cove), I made a series of factual findings but, because of the nature of these being building certificate proceedings, had confined myself to setting out those works necessary to be undertaken prior to the dwelling being put in a condition making it appropriate to require the Council to issue such a certificate.
[3]
An undertaking as to costs if leave was granted?
At the hearing on 15 May, I specifically put Mr Ross on notice that I might ask him whether Ms Chami was prepared to give an undertaking to the Court to meet any of the costs of the Council in any hearing arising from such leave to reopen as might be permitted and with respect to that day's hearing and the any hearing of any application for leave to reopen. I indicated that I was not expressing a view, simply putting Mr Ross on notice that the question might be put to him and that he would need to be able to respond to it if it was so put (Transcript 15 May P 7, L 33 to 41).
During the course of the hearing on 27 May, I asked Mr Ross whether Ms Chami was prepared to give such an undertaking. It is not necessary to reproduce the elements of the transcript of 27 May dealing with this topic. I do, however, propose to treat the outcome as being that Mr Ross was not in a position to give, freely and in an informed fashion, an unqualified undertaking to the Court concerning any of the Council's costs in this phase of the proceedings. I also observe that Mr Griffiths proposed that I should, if I were minded to grant leave to reopen in part or in whole, attach conditions concerning costs to such leave. I indicated to him on several occasions that, as I was sitting as a Commissioner of the Court, I did not have the power to exercise the Court's jurisdiction to impose such costs conditions.
Having made those preliminary procedural observations, I turn, now, to the three specific matters for which Ms Chami seeks the granting of leave to reopen.
I should also observe, before doing so, that I do not intend to reproduce all the relevant extracts from Chami v Lane Cove but simply propose to reproduce such material as I consider is contextually necessary and also to give references where I consider appropriate to what I consider to be the relevant paragraphs needing to be read to obtain a more precise understanding of matters considered and conclusions reached in this decision.
[4]
The balcony at the uppermost level of the western end of the dwelling
During the course of the 2014 hearings, I put Mr Ross on notice that I was concerned about the structural adequacy of the balcony on the western end of the uppermost level of the dwelling to contain the volume soil necessary for a planter box of the dimensions inspected during the course of those hearings (see photographs and plan extracts in Chami v Lane Cove at [473] to [519]). I made directions that would permit the filing and serving of (and if necessary joint conferencing about) expert structural engineering evidence. Those directions are reproduced in Chami v Lane Cove at [181]. They expressly included, in direction (3), a direction in the following terms:
If there is to be a joint expert conference on structural engineering issues, the engineers are also to consider the structural adequacy of the uppermost level western slab to support a garden bed of the dimensions shown in the as built plans (Exhibit 5) on the assumption that that garden bed is to have soil in it to a depth no greater than 800 mm;
The material contained in Ms Chami's two affidavits read on the motion to reopen contain no explanation (let alone any adequate explanation) of why that opportunity was not availed of during the 2014 phase of the proceedings.
Although Mr Ross made a series of assertions from the Bar table as to why this might have been the case, Mr Ross cannot give evidence in these proceedings for the reasons discussed in Chami v Lane Cove.
On this motion, the totality of the evidence is that contained in Ms Chami's affidavits and I do not propose to have any regard to the "evidentiary" matters advanced by Mr Ross from the Bar table as he was on express notice during the 2014 hearings that he was not able to give evidence and this was set out in Chami v Lane Cove. In addition, during the mention on 12 March, Mr Ross canvassed with me whether he would be able to give evidence on an application to reopen and it was quite clearly explained to him on that occasion that it would not be possible for him to do so whilst remaining Ms Chami's agent and representing her in these proceedings (Transcript 12 March, page 2 line 18 to page 3 line 36).
As earlier noted, Mr Ross read two affidavits from Ms Chami in support of her Notice of Motion to reopen. It is appropriate to reproduce, as images, the relevant elements contained within those affidavits dealing with this aspect of that which was set out as a required work in Schedule 1 of Chami v Lane Cove. It is also appropriate to reproduce a communication from Mr Koloff to Mr Ross.
It is not necessary to reproduce any other attachments to the affidavits.
Reproduced below is a copy of what was contained in Ms Chami's 5 May affidavit on this topic:
The relevant portions of her 20 May affidavit are:
Finally, the email from Mr Koloff to Mr Ross referred to in Ms Chami's 5 May affidavit is also reproduced:
First, it is appropriate to note with respect to the elements from Ms Chami's affidavits that they contain, inter alia, a mixture of assertions of fact; expressions of opinion; and matters that are clearly irrelevant and/or inappropriate.
At the commencement of the hearing on 27 May, Mr Griffiths, solicitor for the Council, raised objections to the content of these affidavits - commencing his objections with matters contained in Ms Chami's 20 May affidavit.
I indicated that the course that I had adopted in a recent Class 8 case was that, with the agreement of the parties, I would treat as evidence that which was evidence; treat as submissions that which should properly be classified as submissions; and ignore that which was inadmissible or otherwise irrelevant (Single v Van Motman [2015] NSWLEC 1133 at paras 29 and 30). Although, in Single, the strict rules of evidence did apply but, as a consequence of s 38(2) of the Land and Environment Court Act 1979, they do not apply in these proceedings, nonetheless I suggested that a similar process might provide an appropriate way of dealing with Ms Chami's affidavits rather than needing to address, line by line, each objection that Mr Griffiths wished to take to them.
Mr Griffiths did not accept this approach.
After some further discussion, I indicated that I would consider her material as simply broad support for her belief that reopening concerning this item was necessary for safety related reasons she considered appropriate. I have taken a similar approach with respect to her affidavits' content concerning the undercroft.
There is, in reality, in my assessment, nothing in her words that satisfies any relevant test (such as is set out in Autodesk) as to why reopening should be permitted.
I now turn to the email from Mr Koloff to Mr Ross. There are a number of observations that should be made with respect to its. First, Mr Koloff was the person who issued structural engineering documents that were in evidence during the 2014 hearings and, to the extent relevant for my decision in Chami v Lane Cove, were referred to in that decision. Second, the email does not constitute, on any conceivable basis, proper evidence - let alone expert evidence. Third, the email is obviously in response to matters raised by Mr Ross with Mr Koloff and a copy of that correspondence from Mr Ross to Mr Koloff was not appended to Ms Chami's affidavit.
Finally, however, the matters canvassed by Mr Koloff are matters that, if established to be factually correct through a proper evidentiary process, might warrant reconsideration of that which had been set out in Schedule 1 to Chami v Lane Cove to be required to be undertaken on the balcony at the western end of the uppermost level of the dwelling. These requirements are in the following terms:
Remove any existing tile finish to the existing deck area to the west of the line of the eastern face of the eastern retaining wall for the garden bed that is to be installed pursuant to this requirement.
Construct 227 mm thick masonry retaining walls 1 m in height to create a garden bed of the dimensions and at the location shown in the 2008 development consent plans.
The full outer faces, top and uppermost 300 mm of the interior faces of this masonry wall are to be finished and painted in the same manner as the existing masonry balustrading at the western end of the uppermost level of the dwelling.
The reference point for locating this garden bed is to be the offset distance from the north-western corner wall of the master bedroom on the uppermost level at the point circled in red in the plan extract reproduced at the end of this schedule.
Demolish and make good all existing balustrading beyond to the north, west or south of the western retaining wall of the garden bed so constructed.
Apply an appropriate waterproof membrane with necessary return height to the slab within the interior of the garden bed.
Place soil to a depth of 800 mm in the garden bed.
Plant the garden bed with ornamental vegetation selected by the applicant with such vegetation to be of a type that will grow to at least 300 mm above soil level.
Whilst Mr Koloff's email to Mr Ross would have little or no evidentiary weight in considering this topic if leave were granted to reopen, it nonetheless points to matters that differ from those matters conventionally set as tests for reopening.
In my assessment, the matters asserted by the combination of Ms Chami's affidavits and Mr Koloff's email press what might be regarded as a public interest/safety issues. These are not amenable to simple disregard because it would have been possible for Ms Chami to have dealt with the structural engineering issues inherent in the concerns now pressed or that a specific direction was made, as earlier set out, providing an opportunity for this to occur (with that direction expressly encompassing issues relating to soil loading of the garden bed/planter box/garden box at this location).
Whether or not Ms Chami chose to take advantage of the leave given by the directions earlier set out on advice from her agent, Mr Ross, is not a matter of relevance in the face of these assertions.
What is relevant is the raising of the potentiality (whether real or imagined) of risk of collapse of the structure if the works specified at that location were to be carried out as required by Chami v Lane Cove. Although the fact that Ms Chami was put on notice, through Mr Ross, in the 2014 hearings, that this was a matter of concern and that an opportunity was provided for it to be addressed, that ought not sway my consideration of whether leave to reopen on this point should be granted.
It is, perhaps, a matter that might be revisited if there were to be some later costs application but that, too, does not require my consideration in this determination. Similarly, the fact that, effectively in my view, Mr Ross was unable to or unwilling to give, on Ms Chami's behalf, an undertaking to meet any portion of the Council's costs if leave were to be granted to reopen is also not a matter that I consider should act as an impediment. This is because the application to reopen - confined to this point - must, in my view, be permitted on the very narrow public interest/safety ground pressed through the reproduced material.
Costs issues can be dealt with, if pressed by either party, through an appropriate application.
[5]
The undercroft
Ms Chami seeks to reopen with respect to the requirement that the openings in the southern side of the undercroft, adjacent to the boundary wall with 6 Bayview Street, be enclosed by bricking up with the installation of a single standard size solid door in the resultant brickwork. The relevant requirement in Schedule 1 to Chami v Lane Cove is in the following terms:
The two apertures in the southern wall of the undercroft are to be bricked in.
However, in the larger one of them, a standard door frame and door maybe installed with the dimensions of the door not to exceed 2.1 m in height and 820 mm in width.
The finish of the brickwork is to be consistent with that of the existing walls surrounding the apertures.
The applicant now seeks to reopen to press an alternative outcome:
Item 1- Undercroft south side openings
Proposed south side door to undercroft area shall be glass sliding 2400W x 2300H instead of 820W x 2040H solid door. High level opening to remain to provide cross ventilation or suitable window in opening to be provided.
The basis for this is said, in her affidavit of 5 May 2015 (paras 4 to 13), to be to remedy drainage/dampness issues in and adjacent to the undercroft which are said to be causing adverse impacts on the lowest habitable level of the dwelling. She asserts that it is necessary to have ventilation and sunlight to these areas to remedy these impacts.
These openings were dealt with in Chami v Lane Cove at [393] to [405]. It is unnecessary to repeat, in detail, what was there set out. It is sufficient to note that the appropriateness of the enclosure that I have required be constructed was the agreed position between Mr Nash, the Council's expert town planner, and Mr Turrisi, the expert town planner who had been retained by Mr Ross when he was the proprietor of the property.
Mr Turrisi gave evidence on a voluntary basis when the matter was dealt with by Dixon C (Ross v Lane Cove Council [2012] NSWLEC 1364) and, in these proceedings, pursuant to subpoena issued on behalf of Ms Chami. I observed, in Chami v Lane Cove at [123], that Mr Turrisi gave his evidence in a frank and constructive fashion.
The relevant material before Dixon C has been tendered in these proceedings and the undercroft was the subject of inspection during the course of the first site inspection in these proceedings.
That site inspection, relevantly, included the inside of the undercroft area and the area immediately to the south adjacent to the boundary with the neighbouring property. Ms Chami did not take part in that inspection but Mr Ross did so. During the course of the site inspection, I was not invited by Mr Ross to inspect any matters in the undercroft that might be said to relate to issues now pressed as a basis for reopening.
The conclusion on the undercroft reached in Chami v Lane Cove is consistent with the agreed position of the two town planning experts. Nothing has been produced that could conceivably be regarded as fresh evidence not available at the time of either of the site inspections.
I am satisfied, with respect to this element, that there was a full and complete opportunity for this issue to be canvassed during the 2014 hearings - paragraphs 4 and 5 then 11 -13 of Ms Chami's affidavit of 5 May assert that the problem is not one that has recently arisen. She said in paragraphs 4 and 5:
The ground floor of the property has suffered from problem dampness and mould since the property was purchased.
The closing off of the undercroft area on the south side as has been proposed would remove any sunlight or ventilation to the ground floor areas adjoining the undercroft areas and further exacerbate this problem.
I interpose that, in this context, it does not matter whether the words since the property was purchased mentioned in her paragraph 4 relate to the original purchase of the property by Mr Ross or from the time of the transaction from Mr Ross to Ms Chami. Even if I exclude the former time, any purchase by Ms Chami occurred prior to the commencement of these proceedings and well prior to the site inspection undertaken at the commencement of my 2014 hearings.
She said in paragraphs 11 -13:
Annexure B1 and B2 are photographs showing the water/damp penetrating the rear retaining wall and keeping this floor constantly wet despite the present sun and ventilation configuration. This watercourse is present throughout the year due to the topography of the area. The continuous flow of water keeps the subfloor area damp and this damp smell permeates the building through the timber floor. See also annexure B5 showing water staining from drainage of water over retaining wall and stair.
If the Southside opening are closed off there will be no sunlight or cross ventilation resulting in a potential health hazard particularly with respect to my young children.
Annexures B3 and B4 are photos of the old kitchen with cabinets removed. These photos demonstrate the age of the kitchen and demonstrate the misleading the conduct of the Council officers. Also may be visible dampness in the original timber floors
Even if I were to conclude that the nature of my findings and directed outcomes (not being finally dispositive orders) in Chami v Lane Cove warranted some modestly more permissive approach than that discussed by the High Court in Autodesk, Ms Chami had, through Mr Ross, an entirely adequate opportunity, both during the site inspections and the subsequent Court hearing (including through the oral town planning evidence by Mr Nash or Mr Turrisi) to raise this matter.
There is no proper basis to permit reopening on this point and the requirement in Schedule 1 concerning these undercroft apertures stands in its present terms and timetable.
[6]
Rendering the lift well safe
In this application to reopen, that which is sought by Ms Chami concerning the lift well is set out in the Notice of Motion filed on 21 May in the following terms:
Lift openings on each level to be provided with stainless steel sliding doors.
This proposed outcome is sought to be substituted for the relevant requirement in Schedule 1 to Chami v Lane Cove, a requirement in the following terms:
If the lift well apertures to the two uninspected habitable levels of the dwelling (middle and uppermost) have not been blocked to the standard inspected during the course of the site inspection on 19 November, install blocking panels to that standard.
First, there is no material in either of Ms Chami's affidavits that seeks to provide any evidentiary basis whatsoever as to why reopening of the proceedings should be permitted to enable this matter to be canvassed. That, alone, is sufficient to dispose of this aspect of the reopening request by refusal (see Autodesk).
Mr Ross's submissions on this point on 27 May are, therefore, made without any evidentiary foundation.
However, it is also appropriate, in this decision, to set out some further observations.
During the course of the first site inspection, there was no lift in the lift well. This is clear from the photographs reproduced after [218] of Chami v Lane Cove and my recording, in [231] of that decision, that I had looked up the lift well, myself, and confirmed that there were no lift structures within it.
The second site inspection (when only the garage and the lowest of the three habitable levels of the dwelling were, relevantly to this point, inspected) disclosed that there was a permanently affixed structure in the nature of heavy duty plywood (or similar) providing a safety barrier that would prevent any person (whether adult or child) accidentally falling down the lift well. As can be seen from the requirement in Schedule 1 to Chami v Lane Cove, that which is required for the lift well as a precondition to the issuing of a building certificate is expressed in contingent terms. The requirement to do extra works (if necessary) is designed to ensure that there is an appropriate safety barrier at all levels of the dwelling in the form that was inspected in the garage and on the lowest of the three habitable levels.
Although it was necessary, in Chami v Lane Cove, to set out at some length what might be regarded as the circumlocution in final submissions (written and oral) in the 2014 phase of these proceedings by Mr Ross concerning actual position then applicable to the lift well and the potential physical existence of a lift within it, the basis upon which I am to deal with the lift well was summarised, relevantly, by me at [232] of Chami v Lane Cove in the following terms:
There are two further observations to be made concerning the lift well as part of this setting out of the relevant narrative. The first is that Mr Ross has expressly disavowed any proposal that a building certificate, if issued, include any lift (whether or not there is a lift in the lift well). I have proceeded on this basis. If there is a lift and it requires regularisation in some fashion, that will need to be dealt with by the applicant in such separate fashion as she may be advised to pursue.
The scope of the building certificate application being considered in these proceedings does not include any lift - whether actually installed or not.
Ms Chami expressed, in her affidavit of 5 May, at paragraph 12, her concerns for the welfare of her children resident in the dwelling - albeit in another context. The installation of the required safety barriers is an appropriate and desirable permanent response to avoidable safety issues and there is no evidentiary basis, whatsoever, upon which it would be appropriate to revisit that conclusion.
On the bases set out above, I decline to reopen on this point.
[7]
Conclusion
I have concluded, for the reasons earlier set out, that I should grant leave to Ms Chami to reopen but with reopening being confined to enabling further consideration of those matters relating to the balcony area at the western end of the uppermost level of the dwelling.
However, I am satisfied that there is absolutely no basis that would make it appropriate to permit the matter to be reopened with respect to either the undercroft area or the method of rendering safe the apertures to the lift shaft. Those aspects of the Notice of Motion filed 21 May will, therefore, be dismissed.
As a consequence of my having determined the appropriate outcomes of the elements of the 21 May Notice of Motion, it is also obvious that there will necessarily be a further site inspection and hearing confined to the matter for which leave to reopen has been granted and the matters relating to the works that remain included in the Amended Schedule 1 now appended to this decision.
A further necessary consequence of embarking on this course is that the work presently set out in Schedule 1 to my decision in Chami v Lane Cove concerning the balcony at the western end of the uppermost level should be set aside until after that the further hearing has been undertaken and a further decision given by me on that matter.
The orders that follow from this conclusion provide a functional state of that requirement until that further determination has been made with that further determination dealing with the question of whether or not there should be variation made to that which has been required to the western end of the balcony of the uppermost level of the dwelling.
On the other hand, the remainder of the schedule of works set out as Schedule 1 to Chami v Lane Cove remains unaltered. For abundant clarity, that schedule (minus the works proposed for the uppermost level western balcony) is reproduced as an Amended Schedule 1 appended to this judgement.
I set out, after the orders below, the directions I consider necessary to permit the reopened hearing to take place on the dates that had otherwise been allocated for consideration of what ongoing conditions (if any) might be imposed pursuant to s 149F(3) of the Environmental Planning and Assessment Act 1979 if I were satisfied, upon inspection, that the works had all been completed as required and all the certification required by the schedule to Chami v Lane Cove had also been provided in a form satisfactory to me.
The permitted reopened issue will be dealt with in conjunction with any s s149F(3) issues and matters relating to compliance with Amended Schedule 1 to this judgement.
However, it should be expressly clear to Ms Chami and her agent, Mr Ross, that those matters which remain on the Amended Schedule as now attached to this judgement are required to be completed in the fashion prescribed in it.
If, upon the site inspection on 31 August, those matters now remaining on the now Amended Schedule 1 (including provision of the necessary certificates set out in the amended schedule) have not been complied with (unless there is some variation to the timetable prior to that date), it will be necessary for me to reconsider whether or not I continue to deal with Ms Chami's application for a building certificate.
It is also necessary that I now give express notice of this to Ms Chami, through her agent, because the original timetable made generous provision in the time allowances to permit the various elements of the original Schedule 1 to be undertaken.
This is, now, particularly relevant given that the most major substantial element of the required works (being that required for the balcony at the western end of the uppermost level) has now been set aside until after the reopened hearing and determination of matters that will be ventilated during the reopened proceedings.
Similarly, I have concluded that (subject to the right of either party to relist the matter before me on short notice if there is likely to be a material slippage in compliance with the directions set out below) the further directions necessary for the reopened element should set a precise timetable for Ms Chami and the Council to file and serve evidence on the reopened issue with the requirement to be in the form of self-executing directions so that, if the timetable is not complied with, a party in breach will not be permitted to adduce evidence in the reopened proceedings.
This will ensure that the objectives set for the Court by s 56 of the Civil Procedure Act 2005 to ensure that we conduct proceedings in a fashion that is just, quick and cheap whilst addressing the real issues in dispute between the parties are able to be achieved. Unless the timetable set in the directions is adhered to by both parties, these objectives will not be achieved.
[8]
Orders
It follows, therefore, that the orders on the applicant's Notice of Motion filed on 21 May are as follows:
1. The application to reopen with respect to the balcony at the western end at the uppermost level is granted;
2. If the applicant does not file and serve any statement of expert structural engineering evidence upon which she proposes to rely by the close of business on 10 July (unless such date is varied by further order), leave to reopen is rescinded as is Amended Schedule 1 to the decision of Moore SC of 15 June 2015 and Schedule 1 to Chami v Lane Cove Council [2015] NSWLEC 1003 is reinstated in lieu thereof;
3. Subject to order (2), the requirements set out in Schedule 1 to Chami v Lane Cove Council [2015] NSWLEC 1003 are revoked and are replaced with the requirements set out in Amended Schedule 1 to the decision of Moore SC of 15 June 2015; and
4. The applicant's Notice of Motion filed on 21 May 2015 is otherwise dismissed.
[9]
Path forward
In the applicant's Notice of Motion filed on 6 May, the relief that she sought with respect to the balcony at the western end of the uppermost level of the dwelling was in the following terms:
Item 2- 2nd floor garden box
Garden box to remain as configured permitting balcony width to be 3 m as per DCP, without the placement of soil. Potted plants to be provided as required.
Her Notice of Motion filed on 6 May remains to be determined as, for the reasons set out earlier, a procedural decision needed to be made to determine whether or not to permit reopening of the matter in any aspect. To the extent that her Notice of Motion filed on 6 May also sought to deal with the undercroft, that aspect is now rendered redundant by my refusal, in this decision, to grant leave to reopen concerning that topic. The applicant's Notice of Motion filed on 6 May did not mention the lift shaft entrance barriers/doors.
As can be seen from the terms quoted, the relief sought concerning the balcony has sufficient precision as to the desired outcome to enable this aspect to be dealt with in the limited reopened proceedings.
It is also necessary to set clear directions about what is to be required leading up to the reopened hearing, a hearing which will be held on the dates which had originally been set for the final inspection of the works required to be carried out prior to consideration of issuing a building certificate and considering what ongoing conditions (if any) might be attached to such a certificate.
There is also a need for precision in the directions as it is appropriate to ensure that necessary steps for the provision of relevant expert evidence are taken in a timely fashion.
[10]
Directions
To enable a complete and clear set of directions to provide for dealing with the reopened element of the proceedings together with those matters that remain subject to the requirements set out in Chami v Lane Cove, it is appropriate that I replace the directions given at [567] of Chami v Lane Cove and subsequently amended on 19 February and 12 March (see transcript of 12 March at page 6 lines 5 to 9 setting final, revised hearing dates) so as to retain those elements relevant to the matters remaining required to be undertaken whilst including the necessary steps to accommodate the reopening of the proceedings on the limited basis provided for in my orders above.
I therefore hereby revoke, effective from the date of this decision, my earlier directions to the extent they remain relevant to the future conduct of these proceedings and make the following directions in lieu thereof:
1. Should the respondent propose the making of any orders pursuant to s 149F(3)(a) or (c) of the Environmental Planning and Assessment Act 1979, the respondent is to file and serve a schedule of the proposed orders together with a short summary of reasons in support of each proposed order by the close of business on 26 June;
2. The parties are granted leave to issue a subpoena to produce documents to Mr Koloff with any such subpoena to be made returnable before the Registrar no later than Friday 3 July;
3. Any structural engineering expert retained by either party is to be provided, at the time of retainer for these reopened proceedings, with a copy of these directions; a copy of Part 31 rules 31.23 and 31.27 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules and a copy of the Court's Conference of Expert Witnesses Policy and the Court's Joint Expert Report Policy (Both policies effective 12 June 2015);
4. The applicant is to file and serve any statement of expert structural engineering evidence upon which she proposes to rely by the close of business on 10 July;
5. If the applicant wishes to seek any extension of time for compliance with direction (4), any such application is to be made by Notice of Motion filed not later than 3 July with such Notice of Motion to be made returnable before me at 9 AM on 7 July;
6. Any certificate for works carried out as required by Amended Schedule 1 to this decision is to be filed and served by the applicant by the close of business on 10 July;
7. If the applicant proposes any ongoing conditions pursuant to s 149F(3)(a) or (c) of the Environmental Planning and Assessment Act 1979, the terms of those ongoing conditions and a short summary of the reasons for each are to be filed and served by the close of business on 10 July;
8. The applicant is to file and serve, by the time specified in the preceding direction, a schedule indicating whether or not she agrees to the making of any order proposed by the respondent in any schedule of orders filed and served by the respondent pursuant (1) or proposes any amendment to any of them and, if there is any such objection or proposed amendment or proposed order, identifying the proposed order to which objection is made and/or setting out any amendment proposed together with a short summary of the reasons for that objection or amendment;
9. If the applicant proposes any orders or proposes any amendment to and/or deletions of any order proposed by the respondent pursuant to (1), the respondent is to file and serve, by the close of business on 17 July, a schedule indicating whether it agrees with any such proposed order or changes and/or deletions to any order proposed by the respondent and, if not, the reasons for that disagreement;
10. The respondent is to file and serve any statement of expert structural engineering evidence upon which it proposes to rely by the close of business on 31 July;
11. If the respondent wishes to seek any extension of time for compliance with direction (10), any such application is to be made by Notice of Motion filed not later than 24 July with such Notice of Motion to be made returnable before me at 9 AM on 28 July;
12. If the applicant and the respondent have filed expert structural engineering evidence in accordance with these directions or any variation of these directions agreed by the Court, the expert witnesses are to confer and prepare a joint expert report dealing with matters agreed, matters disagreed and, with regard to the matters disagreed, the reasons for that disagreement with the joint report to be provided to the parties and filed by the close of business on Wednesday 26 August;
13. The experts' joint conference is to be conducted in accordance with the requirements of Division 2 of Part 31 of the Uniform Civil Procedure Rules 2005 and the Expert Witness Code of Conduct in Schedule 7 of the Rules and the Court's Conference of Expert Witnesses Policy;
14. The experts' joint conference is to be conducted without the attendance of the parties or their representatives;
15. Any joint expert structural engineering report is to be prepared in conformity with the Joint Expert Report Policy and is to be provided to the parties and filed with the Court by 14 August;
16. Evidence to be given during the course of the reopened hearing when dealing with matters set out in direction (20)(b) is to be confined to expert structural engineering evidence only;
17. In addition to structural engineering evidence from any engineer engaged on behalf of the applicant (if such engineer is not Mr Koloff), the applicant is given leave to issue a subpoena to attend and give evidence until otherwise excused to Mr Koloff with such subpoena to be made returnable at 9:30 AM on site on Monday, 31 August;
18. If the applicant's structural engineer is not Mr Koloff and Mr Koloff is subpoenaed to attend and give evidence, a copy of these directions and of the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules are to be served on Mr Koloff at the time of service of the subpoena;
19. Any expert reports and any joint expert report available to the applicant prior to the applicant serving a subpoena on Mr Koloff are also to be served on Mr Koloff at the time of service of any subpoena to him to attend and give evidence;
20. This matter is set down for a further hearing commencing at 9:30 AM on site on Monday, 31 August 2015 and returning to Court after the site inspection with a further hearing day on 1 September with the hearing to deal with:
1. Amended Schedule 1;
2. Proposed Order 1 Item 2 of the applicant's Notice of Motion filed on 6 May and proposed Order 3 Item 2 of the applicant's Notice of Motion filed on 21 May; and
3. All matters arising out of or in connection with directions (1) and (6) to (9) of these directions; and
1. Liberty to either party to relist on two days' notice to the Court and the other party (with the relisting party to file and serve a summary of not more than one A4 single-spaced page outlining the reasons for the relisting at the time of requesting the relisting).
Tim Moore
Senior Commissioner
Amended Schedule 1 - 10398 of 2014 (18.8 KB, pdf)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 June 2015